November 24, 2011

That's from his new book "Five Chiefs: A Supreme Court Memoir," and it refers to his experience immediately upon his ascent to the Supreme Court in 1976, when the Justices were deciding Buckley v. Valeo. He goes on:

That distaste never abated, and I have felt ever since that the Court would be best served by inserting itself into campaign finance debates with less frequency.

The Court would be best served, eh? The questions have to do with what the Constitution says about freedom of speech, so one must wonder why he'd think in terms of what serves the Court best as opposed to what the Constitution means or at least what serves the people best.

That view may have had an impact on the unusually long dissent that I wrote during my last term on the Court against the Court’s overreaching in the Citizens United case...

In addition to my overriding hostile reaction to the subjects discussed in Buckley, I also recall puzzlement about why the Court failed to endorse the position expressed by Justice White in his dissent. He effectively explained why the distinction between limitations on contributions (which the Court upheld) and the limitations on expenditures (which the Court invalidated) did not make much sense, and why the Court should have respected the congressional judgment that effective campaigns could be conducted within the limits established by the statute. Time has vindicated his prediction that without “limits on total expenditures, campaign costs will inevitably and endlessly escalate.” He thought it quite proper for Congress to limit the amount of money that a candidate or his family could spend on a campaign in order “to discourage any notion that the outcome of elections is primarily a function of money.”

That is, he favors limiting speech so that people don't get the wrong idea (the wrong idea being that money affects elections). Under the system we have, as the majority of the Supreme Court has interpreted the Constitution, candidates can spend all the money they want trying to get elected and people are free to get the "notion" that money affects the outcome of elections.

Justice Stevens continues:

The majority’s response to Justice White relied on the rhetorical flourish that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” The assumption underlying that colorful argument...

Colorful?

... is that limitations on the quantity of speech in public debates are just as obnoxious as limitations on the content of what a speaker has to say.

That is to say, it's not really so bad for the government to tell a candidate: We think you've said enough.

But there is nothing even arguably unfair about evenhanded rules that limit the amount of speech that can be voiced in certain times or places or by certain means, such as sound trucks. If we view an election as a species of debate between two adversaries, equalizing the amount of time (or money) that each can spend in an attempt to persuade the decision-makers is fully consistent with the First Amendment. Otherwise, appellate court rules limiting the time that the adversaries spend in oral arguments would be invalid because they limit the speech of one adversary in order to enhance the relative voice of his or her opponent.

He's equating the formal conditions within the confines of the appellate courtroom to the speech that takes place in the entirety of all of the forums in which a candidate might speak: all of the city squares and auditoriums, all of the TV and radio channels, all of the print media, and the entirety of the internet!

There's very little mention of Citizens United in Stevens's book, perhaps because the opinion wasn't written by the Chief Justice, and the subject of the book is Chief Justices. But he does mention it, musing that, based on Roberts opinion in Snyder v. Phelps, "perhaps I should give him a passing grade in First Amendment law."

But for reasons that it took me ninety pages to explain in my dissent in the Citizens United campaign finance case, his decision to join the majority in that case prevents me from doing so.

That's it. He doesn't even attempt to explain Citizens United to the general reader, who's expected to accept that the Court got it wrong but it would take 90 pages to explain why. Citizens United — which we covered in my conlaw class yesterday — is indeed damned pesky to absorb, and there's something disturbing about a case that purports to tell us something fundamental about political speech in our democracy, but that cannot be talked about in straightforward terms. If he's so right and the other side is so wrong, he should be able to say why in a clear, readable few pages. Instead, what we get is either way overcomplicated, so you'll have to go read 90 pages, or it's insultingly oversimplified: John Roberts flunks!

Here's the 90-page dissenting opinion, in case you're up for reading it. As we say on the limitless internet: Read the whole thing. I'll bet very few people have read the whole thing. Justice Stevens delves into the history of Americans' attitudes about corporations. (In Citizens United, the majority emphasized free speech, not the source of the speech, while the dissenters made a distinction between individuals and corporations and would have accepted limits on speech when it comes from corporations.) Stevens wrote about the fear of corporations in early American history. He quotes Lawrence Friedman's "A History of American Law": “The word ‘soulless’ constantly recurs in debates over corporations… . Corporations, it was feared, could concentrate the worst urges of whole groups of men”). Later in his opinion, Stevens augments that anxiety about corporations with his own words: "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires."

Here's the whole "soulless" paragraph from Professor Friedman's book:

The word “soulless” constantly recurs in debates over corporations. Everyone knew that corporations were really run by human beings. Yet, the word was not completely inappropriate. Corporations did not die, and there was no real limit to their size, or their greed. Corporations might aggregate the worst urges of whole groups of men. No considerations of family, friendship, or morality, would temper their powers. People hated and distrusted corporations, the way some people came to fear the soulless computer—machines that can join together the wit, skill, power, and malevolence of infinite numbers of minds.

Thank God my computer is soulless! I'm using it to write this post, and I wouldn't like it to insert any morality, beliefs, feelings, thoughts, and desires, between me and you, as I invite you to aggregate your possibly evil urges here in the comments. With the power of the soulless computer we can join together the wit, skill, power, and malevolence of infinite numbers of minds.

142 comments:

IMO his real fear is that the soulless court decisions hiding their agendas behind circular reasoning from dicta and creating implied assents from a lack of dissent in a victim class will become clear to the population because soulless computers spread understanding dispelling the fog.

What always interests me in these debates is the underlying assumption of a bright line between evil faceless Corporate bureaucrats and virtuous Government faceless bureaucrats.

A Corporation is a Government in miniature; the system is valuable because it decentralizes power. A Government is neither more nor less than a Corporation on a grand scale, given monopoly power. The potential to "...aggregate the worst urges of whole groups of men.." is the same in either case, and the risk is arguably more severe when the power involved is greater.

The Court would be best served, eh? The questions have to do with what the Constitution says about freedom of speech, so one must wonder why he'd think in terms of what serves the Court best as opposed to what the Constitution means or at least what serves the people best.

Yes. I'm sure the concept of how legitimately the court is perceived must leave you baffled.

What about unions? Justice Stevens, I would bet, would never think to take away the right of unions to speak out on political matters. What's the difference between a union and a corporation? Both are made up of groups of individuals. They both have CEOs. Both want to maximize their positions in the economy and country. They are identical. Try, though, taking their free speech rights away. Watch the hypocrisy as liberals twist themselves into a pretzel defending the unions

Indeed. It is that monopoly on the use of force that really causes a splinter in the brain for some.

I wonder if the answer for that mindset is just to say that the government should get to be more brutal. If we outsource brutality to mercenaries, maybe the role of the government becomes a fighting ground for even ghastlier treatment of those we don't like. Hence, torture, total war, military tribunals where innocence is not presumed, death for the uninsured, etc.

I imagine that Stevens considers it totally obvious that whatever is in the best interests of the Court must be in the best interests of the country. And since the Court says what the Constitution means, in Stevensworld the Court IS the Constitution. As the Constitution represents all that is good and proper, the Court is the appointed protector of all that is good and proper.

What about unions? Justice Stevens, I would bet, would never think to take away the right of unions to speak out on political matters. What's the difference between a union and a corporation? Both are made up of groups of individuals. They both have CEOs. Both want to maximize their positions in the economy and country. They are identical. Try, though, taking their free speech rights away. Watch the hypocrisy as liberals twist themselves into a pretzel defending the unions

In fairness to Stevens and the other dissenters, I believe that the restrictions the majority found unconstitutional in Citizens United applied to union speech as well as corporate speech.

I've always wondered if liberals would've been so gung-ho about government control over corporate speech if the test case had been an anti-Bush documentary produced by a liberal corporation. Would Ritmo and company have insisted that the government had the right to quash speech critical of GWB?

Leftwing judges are just as creepy as any two-bit leftwing thinker. That is, they don't think - they emote and propagandize.The left desire big, centralized, loving, soul-filled government filled with lock-step bureaucrats who do as they are told. How can individuals who join together outside of government be trusted until they prove they are worthy of the democrat party? The left's desired restriction of free speech for corporations is really just an excuse for a shakedown.

>> Corporations did not die, and there was no real limit to their size, or their greed. <<

It's hard to imagine a more moronic statement has ever been written. Complete idiocy.

Corporations "die" all the time when consumers change their buying preferences and force them into a process referred to as bankruptcy. Ever heard of Enron, Worldcom, Borders, Lehman Brothers? Want to be in the business of selling 8-track tapes in a brick and mortar storefront now that consumers have decided they prefer their music distributed to them in digital form? Didn't think so.

Professor Mark Perry posted at his wonderful blog, Carpe Diem, this week that 87% of the corporations that made the Fortune 500 list in 1955 no longer exist as stand alone, independent entities today.

Governments, on the other hand, are monopolies. They are not subjected to the discipline of market forces. When they provide inefficient services, or pay themselves bloated salaries and pensions and run out of money, it's very rare that they file for bankruptcy. Instead, they use their monopoly on coercion to impose higher taxes.

It is that monopoly on the use of force that really causes a splinter in the brain for some.

I realize your knee-jerk Leftism (has to be knee-jerk, because leftism is all feelings, no reason) causes you to vomit forth fetid bon mots, but the foundational principles of America's government is that because the government has a monopoly on force, it must also be limited. That's what the Constitution is for, to limit government.

Thank God my computer is soulless! I'm using it to write this post, and I wouldn't like it to insert any morality, beliefs, feelings, thoughts, and desires, between me and you, as I invite you to aggregate your possibly evil urges here in the comments. With the power of the soulless computer we can join together the wit, skill, power, and malevolence of infinite numbers of minds.

OMG(Not!).. you're negating everything that the Artificial Intelligence people have worked for all their life. You know who their biggest believer is, DoD -- they think there is a miracle somewhere there while keep funding the stupid projects that AI people propose.

But down to earth, the Internet is not as benign as you may think. Google for one is all about inserting itself in the middle and manipulating the psyche of the gullible populace (like how it got you to vote for Obama -- the manipulation is so subtle that you won't even see it. You will throw at me that post about why you voted for Obama, won't you?).

Obviously multinational corporations have a soul, it is just not located in this country as the recent numbers show:"U.S. Department of Commerce released a report Tuesday in the 21 century the first 10 years, U.S. multinationals in the Asia Pacific region’s new recruits of a total of 150 million people, Latin America 47.75 million new recruits, while the total number of employees laid off its 86.4 million people, which indicates that U.S. companies willing to increase jobs overseas markets."I like Lessig's idea of making the funders of elections the people through a direct tax contribution that will then be distributed to candidates. As far as speech goes, we can have endless debates, without all the ads--

Either campaign finance laws on independent expenditures allow limitation on how much the New York Times Company / Fox News can spend covering an election, or they're total BS.

Either Stevens is too stupid to understand this basic point (that was made in the CU briefs and majority decision), or worse, he thinks it is just fine that a judge could shut down a newspaper for advocating a point of view.

And his view of elections as two-sided is nuts, too. There are multi-candidate primaries and third-party candidates. What happens if I run a Me for Prez campaign that runs solely negative ads about Romney? Court gets to decide if I was serious enough or my campaign was a fraud to get around the law? That also indicates Stevens is either stupid or thinks the courts should be neck-deep in elections.

First, the 20th century is rife with presidents who held the job. But who, upon inspecton, don't look all that deserving.

Big surprise. Politicians are more like whores then saints.

And, yet? When white men held the reins, it's a funny thing. But for the most part we got judges who gained respect in their communities. And, you can go back and see solid writings.

Our laws are really based on writings. (The way the Talmud is based on splitting hairs. But no rabbi can just step up and start re-interpreting what's already there!) It's a system of legalities that work because you have to be extremely familiar with the texts. When you point out your legal standing.

And, then? Came the litmus paper. Heck, the governor from California, Earl Warren, was a political jerk. Whom LBJ "asked" to leave his high bench ... to rule on the JFK murder. Done in broad daylight. With witnesses, galore. He knew his conclusion right off the bat. And, he never did worm his way back into any reputation.

So, some appointees are JOKES.

Powerful. But still JOKES.

Most of the opinions written, are written by recent graduates from Harvard law. Because they have "connections" to land on an important judge's "staff." (The "hoist them up" like a patard.)

Stevens isn't the only justice who carried distain! First among them would be O'Douglas. (Who was very bright, and non-conformist.)

Has the Supreme Court improved any? Nope. The nader, though, goes to KELO. With second place going to "plastic reindeer."

The symbol, instead of the naked, blind-folded lady, whould be her standing there with her scales ... AND a large pink flamingo at her feet.

Now, what case did Justice Stevens write up that has impressed anyone?

I'm impressed by Alex Kozinski ... who sits on the 9th ... EVERY SINGLE TIME I READ ONE OF HIS OPINIONS.

There are better judges below our Supreme's than ever! But unlike baseball ... where the most talented advance ... Lawyers who are crooks, and blow politicians, are most likely to advance first.

Do they teach these behaviors in law school? Bet you can take a Bar and not see one reference.

@Ann it's amazing how this fool pontificates. Either you believe in free speech or you don't. The get the money out of politics gang fancies themselves as vanguard of the proletariat. They assume the electorate is composed of easily swayed fools that any slick advertisement can them sway them to vote in what they perceive as a bad outcome. Considering Obama was elected they might even be right.

One thing any advertising executive can tell you is that if the product stinks all the advertising in the world won't sell it. Money follows power. Reduce the power of government and they money will dry up.

Paco Wove makes a very good point about the difficulties involved in "leveling the playing field." As Mitch McConnell (R-KY) once said of this: "In Ky registered democrats out-number registered republicans 2:1. Hoe do you 'level' that except by spending? And to make things even you'd have to eliminate the two biggest newspapers in the State, The Courier Journal in Louisville and Lexington's Herald Leader which are unalterably liberal."

Unions may have corporate aspects but are in no way comparable to massive corporations. Compare the salaries of say the head of the AFL, or other big unions to Koch Bros, Exxon, Shell, Microshaft, etc. Trumka probably makes a low six figure income not billions--. No comparison except to right-wing bloviators, ie C-bob, trying to get the anti-unionist hype on. Citizens United in effect made it possible for plutocrats such as the Kochs to buy elections.

J ya think the total compensation of union bosses is in the low six figures? Your even dumber than i thought possible.

What you are saying ever so discretely is that the electorate is composed mainly of morons that can be easily swayed by evil corporations. Therefore virtuous souls like you and those of bien pensant elite ought to shape the narrative so the morons vote as they ought to vote if they truly understood where their interests lie. Admit it! be proud and loud and shout it out that The Vanguard Of The Proletariat needs to shape the narrative for the Good Of The People. Are you ashamed of being a communist? Admit it, be proud of being a communist!

Shell and Exxon provide me with the fuel I need. Microsoft provides me with useful business products. Trumka just costs me money. Now what is the animating spirit of unions? More! What do we want? More! Corporations want more as well. More profits which as a part of the collectivist known as the shareholders is the more I want. You have a problem with that?

I'm not surprised you find this clever. It's literally true, yet completely misses the point. Without corporations and the concept of limited liability, there would a lot less investment and entrepreneurship and we'd all be a hell of a lot poorer.

Think about it - would you buy stocks if you could potentially be on the hook for that company's debts were it to fail? And with less capital investment, you'd get less economic activity and less wealth creation. I suppose you'd be OK with that, though, as long as some rich guy gets screwed.

"He thought it quite proper for Congress to limit the amount of money that a candidate or his family could spend on a campaign in order “to discourage any notion that the outcome of elections is primarily a function of money.”

AA: "That is, he favors limiting speech so that people don't get the wrong idea (the wrong idea being that money affects elections)."

No. The analogy itself is bogus. AS Justice White realized Congress did not limit "freedom of speech" by limiting campaign contributions/funding. They wanted to prevent monopolies of the political process, more or less. And it's not "the wealthiest candidate is the best candidate." At least until the CU decision.

I also take exception to the notion that corporations are "greedy." Corporations exist to make a profit. There's a difference between that and plain old greed, though apparently the distinction is lost on left-wing tools such as Justice Stevens. I want the corporation I work for to do well financially, because that means I'll still have a job come Monday morning.

The trick is to see to it that corporations do well by making good products, by having better R&D than their competitors. We used to have that in this country, but Ritmo and Stevens want corporations to thrive based on Obama's crony capitalism. And I think that all three of them are seriously mistaken.

But when the system you favor keeps putting money in the pockets of...

Which system, current or future, do I supposedly "favor", oh He Who Never Speaks for Others Except for Those with Whom He's Obsessed?

BTW, what did your alleged psychological training teach you about autism, and theory of mind?

You are obviously as much a noob as you are a hack. I can question the capacity of an autist for theory of mind without that being a statement on any such capacity of my own. There is no moral or political dilemma here, noob. Just a rhetorical one -- for you.

Stop being a massive dunce and be thankful for the fact that, despite how empty your life is, you at least have someone on the internet to be obsessed with. I guess that's something, right?

The idea that the left wants crony capitalism is the funniest error I've heard. ... Voters understand that it is a bullshit

@Ritmo, you could not possibly type some of the drivel you've typed in this thread without holding precisely the views that I and others have ascribed to you. The mere fact that you lack the introspection to understand that is your problem, and not our "error."

Ritmo, certainly crony capitalism arises outside of party but your attempt to deflect from the fact that the financial industry has heavy ties to the Democratic Party in general and Obama in particular are as pathetic as we've come to expect from you.

Not to mention that Jon Corzine, ex Democratic governor of New Jersey and CEO of Goldman Sachs - lauded by VP Joe Biden as the guy the administration went to for advice on the financial industry - stole $1.2 billion of client money for MF Global while lobbying the SEC for a rule change to allow his stealing to be legal.

I guess I'm too pathetic to be sympathetic to this idea of yours that the misdeeds of one Democratic ex-politician speak more loudly than an entire Republican caucus that opposes regulation of Wall Street.

But who am I kidding? I'm sure the Republicans were so sorry to see Elliott Spitzer removed from office.

justice Stevens writes: "But there is nothing even arguably unfair about evenhanded rules that limit the amount of speech that can be voiced in certain times or places or by certain means, such as sound trucks."

Hey Justice Stevens, it says "Congress shall make no law ... abridging the freedom of speech...". It doesn't mention anything about fair or unfair or anything about bigotry against corporate entities.

"That is to say, it's not really so bad for the government to tell a candidate: We think you've said enough."

Well, it already does limit the amount of speech (not the content) in various ways, and so do public fora not controlled by government, and the Supreme Court appears to be comfortable with these limits. For example, the amount of speech any individual Member of Congress can make on the floor of the House is strictly controlled. In publicly sponsored political debates the speaking time of each participant is limited by mutual agreement. Speech can be limited in length on the Senate floor if there is a 60-vote supermajority in favor of restricting speech. Congressional hearings limit the time each Member or Senator can have to pose questions. Appeals courts give advocates time limits their oral arguments. To argue that there should not be restrictions on campaign expenditures that enable volume of speech is to ignore the reasonable rules that do limit the amount of political speech without violating the First Amendment.

Citizen's United is not really about this issue. Rather it is about selective restrictions on who has the right to speak, not how much time they may have to get their points across. I would like to see arguments that campaign spending restrictions that had the effect of reducing the total amount of speech TIME available to a candidate on either side, or advocates for such candidates, are inconsistent with such precedents allowable under the First Amendment.

The one advantage the Americans have, fundamentally, is a clear and just constitution. We in Britain have a constitution, but it is written in many places and relies too much on tradition. Courts do not uphold it, even our clear right to freedom of speech.

The first amendment to the US Constitution says:

"Congress shall make no law ... abridging the freedom of speech ..."

This is clear and unequivocal. Had those writing the Constitution so intended, they could have written "Congress shall make no law abridging the freedom of people to speak". They could have said "Congress shall be permitted to abridge the freedom only of corporations to communicate". They did not.

The first amendment does not apply to "people" or, indeed, to corporations. It applies to Congress. It states clearly a restriction on the power of Congress.

Citizens United was a case that proved only that most members of the Supreme Court would pass a reading comprehension I might have been set in the first year of secondary school (5th grade or so, in US terms). Justice Stevens might have been in for some remedial lessons.

Ritmo Re-Animated might have been in for some extra English classes too, although I suspect Ritmo simply never bothered to read the First Amendment. Whining is so much less trouble if someone else is telling you what to say.

Everything he or she has written here suggests the usual unwillingness to think for one's self characterising the political left, the dull repetition of someone else's talking points. Someone not very bright, at that.

Full disclosure, I haven't read all of the comments, but I trust that someone has pointed out that corporations exist mostly for one purpose: to make a profit. As long as we all understand that, there is an arguable presumption that it is factored into our consideration of the matter at hand.

Geez Spouting Richard. If you had any clearer and more unequivocal ("fundamentalist") an understanding of the constitution, you might be tempted to proclaim no exceptions for libel, slander, yelling fire in a crowded theater, or other situations that a snotty limey like yourself must have had your head too far stuck up your ass to consider. Even though the American courts have considered and recognized these.

Yes, asshole -- we, too, have courts and the traditions that constitute their rulings interpreting the law. They're called "precedents". Look them up. We learn them before you were wearing tuxedos and hunting foxes with the other grammar school Hooray Henrys. They're a part of American law that may get in the way of your constitutional fundamentalism, but even the conservative wing of the court recognizes them and tends to defer to them.

Now go fuck off ("piss off"?) and do clearly think of a way to remove your bloated head from your ass. Once you have done so, you can write a clear and concise description of precisely how this delicate and necessary procedure was performed.

Ritmo, you whine about the "entire Republican caucus" opposing regulation while ignoring that Glass-Steagal ( the favorite of ignorant OWS ) was repealed on the lobbying of Robert Rubin - Clinton's Secretary of Treasury, Citigroup and Goldman Sachs CEO - while Jon Corzine lobbied for deregulation, and the Obama administration has been filled with Robert Rubin protege's like Tim Geitner, Larry Summers, and more. Jon Corzine is not a one off, the Democrats are Wall Street.

I'm not surprised you live in the irrelevant past, Robin, since you can't name me one regulation proposed or supported by a Republican -- ANY Republican -- since their Depression to address the deregulated mess they caused.

They do not want to change any rule that allowed this fleecing to occur, so of course you deflect with the names of Democrats who have stabilized the threat or worked with the stuttering Elmer Fudd-like flunkee without whom the repeal of Glass-Steagall wouldn't have happened, Phil Gramm.

But I'm sure you'll try to convince me that the Gramm-Leach-Bliley Act (all Republicans) was misnamed.

I have always wondered how any notion of "equalization of finances" in any election is fair at all. If we have to equalize money, then why not equalize popularity for traits that are not important to the candidate being capable of filling the role? If Mitt Romney is taller and more handsome than Ron Paul, shouldn't Paul be provided a 'Candidate dummy' or body double to stand in for him to level the playing field? How do we offset the comparative advantage that an Obama has with his Hollywood and Music Industry support where a goofball like Jeanine Garafolo or a nonsensical opinion from George Clooney can get heard by millions due to their over-the-top influence from their unrelated position in society? Does a GOP candidate get free airtime in the general election cycle to make up for it? No one would argue any of these ridiculous positions, but they are just as valid and just as negatively affecting the notion of a level playing field in elections. Bottom line is that money is just a way for those without access to media/exposure/height/good hair to get the message out using the only means available to them.

Why weren't you criticizing the Clinton Administration giving a no-bid contracts to KBR? (The Clinton administration made the same calculation in its own dealings with Halliburton. The company had won the LOGCAP in 1992, then lost it in 1997. The Clinton administration nonetheless awarded a no-bid contract to Halliburton to continue its work in the Balkans supporting the US peacekeeping mission there because it made little sense to change midstream.

When have you or anyone on the left criticized no bid contracts going to Murtech?

When have you or anyone on the left criticized this?

Over the last year, the Obama administration has aggressively pushed a $433-million plan to buy an experimental smallpox drug, despite uncertainty over whether it is needed or will work.

Senior officials have taken unusual steps to secure the contract for New York-based Siga Technologies Inc., whose controlling shareholder is billionaire Ronald O. Perelman, one of the world's richest men and a longtime Democratic Party donor.Siga was awarded the final contract in May through a "sole-source" procurement in which it was the only company asked to submit a proposal.